2014 Note: This essay was prepared in 1990 at the request of the United States Information Agency, and sought to provide a succinct introduction for people in the Soviet Bloc regarding the constitution and governance of the United States.

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Introduction

The concepts of federalism and separation of powers are distinct but related principles of political organization that are deeply imbedded in American governmental theory and experience. They are often confused. This confusion arises because both concepts involve separating or dividing governmental powers among distinct political organs in order to make government responsive to people’s needs and to keep government from becoming tyrannical. They are key elements of our government under law, our “pravovoye gosudarstvo.”

The nations and people of the Soviet Union are now endeavoring to establish representative and responsible governments under law, from the most local levels to (perhaps) a multinational confederation or commonwealth of many of the nations of the present empire. The theories and experiences of a huge and diverse political experiment like the United States of America, which has survived for more than 200 years, might therefore be instructive. This is not to say that the American system should be adopted wholesale or is incapable of improvement; far from it; building a government under law that reflects the will of the majority but protects the rights of minorities and of each individual is a daunting task and a never-ending struggle. Nonetheless, American jurisprudence on federalism and separation of powers has much to commend it.

Separation of powers involves functional separation between the legislative, administrative, and judicial branches of government. Because each checks and balances the powers of the other two, “separation of powers” is often referred to as “checks and balances.” This division of authority along a horizontal axis, based on function, is what distinguishes separation of powers from federalism.

Federalism involves geographic separation, which divides the units of government along a vertical axis, from federal, to state, to local (consisting of county, city, town, and even smaller governmental units) — each of which is organized, at least to some extent, with horizontal checks and balances. The degree of horizontal division within each of the 50 states varies, however, because under our federal system each state retains great latitude in its internal governmental structure.

Separation of Powers

Separation of powers between the legislative, administrative, and judicial branches is premised upon the belief that human rights are best preserved in a government of deliberately fragmented, countervailing power centers. This segmentation of authority was intended, in the words of one of our Constitution’s framers, as a “barrier against the enterprises of ambition” — an institutional check upon the natural tendency towards self-aggrandizement, accomplished by balancing each organ with the weight and authority of the others.

Our central or “federal” government (headquartered in our nation’s capitol, Washington, D.C.) and our 50 state governments (each with its own legislature, governor, and state judiciary, headquartered in 50 state capitols), as well as thousands of smaller local governments, all reflect the American experiment with majority rule, minority protections, individual rights, and limited government under law — “law” being more than our Constitution and statutes, more than the command of a particular government of the moment, and encompassing a history and culture preoccupied with governance that transcends government. This conception of “law” and the distinction between government and governance are two important themes that we shall return to.

The founders of our federal government viewed the legislature as the most powerful organ of government. They therefore further divided the federal legislative branch into two “houses” — the upper house, or Senate, and the lower house, or House of Representatives. Together, these houses are called Congress, and each checks and balances the powers of the other. The agreement of both houses of Congress, and usually the agreement of the president also, is necessary for any proposed change of law to become effective.

We currently have 100 senators, two elected from each state, and 435 representatives, each elected from a district of roughly the same population. Therefore, large states have many more representatives in the lower house than small states (several have only one), yet each state has equal representation in the Senate. As a result, a minority of the American population (located in sparsely populated states) can elect a majority in the Senate, but not in the House of Representatives, whereas populous states can dominate the House, but not the Senate. Note that under this sub-heading of “separation of powers” we have touched on questions of federalism such as the power relationships of small and large states in our federal legislature. As this discussion proceeds, it will be necessary to allude frequently to the interplay of the vertical and horizontal axes of organization.

Only the House of Representatives can initiate laws to raise money — that is, to tax the people — thereby reflecting the clarion call of our Revolution: “No taxation without representation!” Members of the House serve two-year terms, thus being especially subject to local whims and sudden mood swings of their electoraldistrict voters. Many House members admit that in deciding whether to support or oppose particular legislation they often “vote” the majority viewpoint of their constituents, even when they believe that this majority opinion is misguided, because to do otherwise risks defeat in the next election.

In addition to voting on legislation, the Senate may reject all presidential appointments to high offices, such as federal judges (they serve for life) or administrative officers (they serve during the president’s term), as well as all treaties with foreign governments. Senators serve six-year terms, which are staggered so that only a third of the senators face elections every two years (and no state ever elects both senators in the same election). Thus, the composition of the Senate is less subject to sudden mood changes among the people.

Another function of the Senate is to sit as a court in a trial of the president; such a trial can only occur, however, if the House of Representatives first votes to “prosecute” the president (for “treason, bribery, or other high crimes and misdemeanors”); if the Senate convicts, the president is removed. Another important aspect of the federal legislature’s oversight of the administrative branch is the power of either the House or the Senate to hold hearings and investigate any matter of public concern, including allegations of administrative abuse or inefficiency. For this purpose, the federal legislature may issue subpoenas and compel witnesses to testify, but their testimony cannot be used against them in a subsequent criminal prosecution.

The powers of the president and the federal administrative branch will be discussed in more detail below. In order to expand upon the role of the legislative branch, and to explain the role of the judiciary (as it pertains to both federalism and separation of powers), we must first discuss an important difference between American and Soviet law.

Distinctions Among Constitutional, Statutory, and Common Law

A crucial element of our governmental structure is the distinction between statutory law and constitutional law, and the distinction between both of these and common law — the sum and substance of all prior judicial precedents, which (among other things) define and breathe life into the words and phrases of all subsequent statutory and constitutional law. Common law is often called “judge-made” law, yet the judges seek it in the evolving usages, customs, traditions, and history of such cultural inventions as contracts, private property, the idea of negligence, the notion reasonableness, the concept of due process, and all the rest that comprises the Western legal and philosophical tradition. We shall discuss the role of common law further. Now to the distinction between statutory and constitutional law.

A simple majority of both houses of Congress can adopt or change any federal statute, so long as the president agrees. A twothirds majority of each house can override the president’s disapproval, called a veto. The Supreme Court, however, can authoritatively void any such federal statute if it contravenes the Constitution.

The Constitution is a “super-law” that all federal and state laws must abide by. It is not merely a list of principles to be followed or ignored as government officials choose. It was drafted 200 years ago, and has been amended occasionally thereafter, in order to establish the fundamental processes of government and the rights of individuals. It is an “organic law” that has real legal effect, binds everyone equally, and cannot be casually altered. In short, it truly is — as the Constitution states — “the supreme law of the land.”

Changes in the Constitution, unlike changes in statutory law, require a two-thirds approval of each house of Congress plus approval of the state legislatures of three-fourths of the states. Another route to amending the Constitution, which has never been used, is for two-thirds of the state legislatures to call a constitutional convention (and three-fourths would be necessary to approve any changes proposed by the convention). This route is feared because of the drastic changes it might invite. After all, a mainstay of constitutional theory is that the passionate majority of the moment must be restrained from doing what its children and grandchildren might come to regret; we have to restrain our tendency to seek quick cures that too often are worse than the malady they remedy; we often have the right to do something, but this does not mean it is the right thing to do; constitutional changes should be based only on a nationwide consensus, following lengthy debate and reflection.

The Bill of Rights, the American charter of individual rights set forth as the first ten amendments to our Constitution, has never been changed. During the past 200 years there have been only 16 other amendments, although hundreds have been proposed. Currently, for example, a majority of Americans apparently want to outlaw flag burning, but the Supreme Court has ruled that the Bill of Rights’ guarantee of freedom of speech protects flag burning as “symbolic speech.” Any statute against flag burning is therefore unconstitutional. A constitutional amendment to permit statutes that ban flag burning might have the requisite “super” majority support at this moment, but over time cooler heads will likely prevail — and changing our Constitution takes time, with many pause-points along the road for reconsideration. These cooler heads might be able to convince enough others that the flag ought to be respected precisely because such respect is voluntary, not coerced — that forced allegiance cheapens the idea, and eventually the reality, of devotion to ones political system. If so, then our Bill of Rights will continue to allow flag bUrning, and no statute will be able to force Americans to love their country.

Our original Constitution was a compact among thirteen independent former colonies. These sovereign states formed a limited central government to wield “federal” power in those areas where they sought coherent multi-state coordination. Over time, however, and particularly following the Civil War of 1861-65, this federal compact changed significantly. Let us now explore the concept of federalism and how it has changed.

Federalism

Federalism, as suggested, was premised on the founders’ belief that governmental units closest to and controlled by the people are best able to know and meet their needs, and are least likely to endanger or usurp their inalienable, God-given rights and liberties. As written by Thomas Jefferson, and signed by representatives of all the former colonies, our Declaration of Independence — The Unanimous Declaration of the Thirteen United States of America, in Congress, July 4, 1776 — proclaims: “We hold these truths to be self-evident; that all men are created equal, and that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

These sovereign states initially formed a loose confederation, but the need for a closer bond, and hence a central government, quickly became apparent. The Constitution reflected that need, yet the central government it created was nonetheless weak. Its prerogatives were few and narrowly defined, while state and local government prerogatives were many and broadly defined. Our federal system has undergone great change, largely due to reconsideration of that initial premise of limited central or federal authority.

Most notably, constitutional amendments following the Civil War forged a new federal compact that denied to state and local governments the once-tolerated local prerogative to enslave other humans. Certain fundamental freedoms had to be enjoyed by all people who lived in the United States, regardless of their color, or — as Abraham Lincoln saw — the American experiment of freedom would fail. After that war, former slaves of African origin became American citizens, and therefore state citizens, even in states whose white majorities preferred to keep them enslaved.

The Civil War amendments, and subsequent interpretations of the u.s. Supreme Court, granted to all citizens throughout the United States the same fundamental protections of the Bill of Rights. Those protections were not defined or refined overnight, however. Indeed, they are still evolving. But the fundamental shift from a Constitution binding a collection of independent states, to a Constitution binding a nation of people (who live in interdependent states), had begun.

After the First World War, the constitutional protections of national citizenship were further extended, this time to women. This change accelerated the shift of constitutional emphasis from discrete governmental units to the people as a whole. The upheavals of the Great Depression of the 1930s, the perils of the Atomic Age, the challenges of the Space Age, and the new perils and promises of global economic, environmental, and political interdependence, have all further shaped our constitutional compact. However, these changes are barely reflected in textual changes in the Constitution as such.

Rather, these non-textual changes were wrought by historical forces that changed the way Americans (and the American judiciary) have come to interpret the Constitution’s words, phrases, and implications. The result has been an expansion of the powers of the federal government relative to those of the states, and an expansion within the federal government of the administrative and judicial branches relative to the powers of Congress.

The federal government — whose chief administrative officer is the President of the United States, elected by all citizens of voting age — has undertaken initiatives since the Great Depression which vastly expanded the role of the federal government. These initiatives, often starting as presidential-election promises, have been quite controversial. Yet their broad-based popularity, given that presidents and members of Congress have been elected and reelected due to them, speaks for itself. The people do not want their Constitution interpreted so narrowly as to doom the government’s capacity to deal with real and pressing problems of the modern world.

Governmental initiatives of the past half century have involved federal funding and regulation in fields like education, housing, welfare, workplace safety, public health, control of pollution, scientific and cultural endeavors, and numerous other policies and activities that the founders of our federal system would have deemed too “local” for federal intervention — or, indeed, deemed utterly inappropriate for any governmental involvement whatsoever.

These initiatives have generally started as legislative and administrative, yet in due course have required jUdicial scrutiny and interpretation. As a consequence, the federal judiciary has massively expanded the scope of its involvement in questions touching individuals, local clubs, private associations, business organizations, economic regulations, and the governments of towns, counties, and states.

At the same time, partly due to Supreme Court prompting, the American populace has broadened its vision of the nature and scope of federal constitutional protections, including several highly-contested “unenumerated” rights (they allegedly “go without saying”) referenced in the all-important Ninth Amendment.

The history of words and their meanings “is” our law, our reasoning made flesh. For example, the constitutional requirement that no person shall be deprived of life, liberty, or property without “due process of law” — a concept going back to Magna Carta in 1215, and even earlier — has evolved here and elsewhere, over 200 years, into a very elaborate jurisprudence of individual rights … and attendant societal responsibilities.

We have already discussed the distinction between constitutional and statutory law, on the one hand, and the common law or “judge-made” law, on the other hand. That “law” includes the interdependent “equity” powers of England’s former ecclesiastical courts, thereby wedding the common law with humanity’s larger quest for justice and righteousness. Those two words are essentially synonyms.

To repeat, the underlying rationale of the common law is that nothing which has a history can be adequately defined except with reference to that history. Concepts like property, contract, negligence, due process, free enterprise, and indeed the concept of government under law, like the whole vast edifice of words and phrases that express the generalities and particulars of our civilization, are rooted in history and attain their life and meaning from history.

The U.S. Supreme Court is the primary organ for fostering and articulating the evolving common law of individual rights, although state supreme courts playa major role too. International standards and norms are increasingly consulted, also. These international standards are themselves based on Magna Carta, the Western tradition of “natural rights” and limited government, and the recent jurisprudence of courts like the U.S. Supreme Court and the International Court of Justice in the Hague.

The common law tradition of “growing” organic law, not merely constructing mechanical syllogisms based on definitions uprooted from history and experience, reposes great power in the judiciary. The life of the law is experience, not logic, as the great Supreme Court Justice Oliver Wendell Holmes observed. And logic itself is barren unless its terms are rooted in the fertile soil of prior wisdom — wisdom that itself evolves from continuous feedback loops between theory and experience, each influencing the other. The power of the Supreme Court, then, is based upon this tradition of judge-made law about the Constitution as much as upon the Constitution itself. And this power has grown greatly.

The Supreme Court — and hence all 1000 federal judges, who are bound by its decisions — has become the principle bulwark of protection against oppression by local governments and even private groups, businesses, and individuals. Experience has shown that a distant and impersonal central government, acting through judges who are not answerable to majority whims, can provide powerful protection to individual and minority rights. Federal judges serve for life, if they choose, and their salaries cannot be reduced. This guarantee of judicial job security is a crucial element of Liberty under Law, and hence of constitutional democracy, properly understood.

Judicial independence is the best shield against fickle democratic majorities, tempering their passions with sober reason and the Rule of Law. The line between democracy and mob rule can too easily blur; an independent judiciary, by casting the great passionate political disputes of the moment into “mere” legal cases, can often serve to keep that line clear — or at least pull the combatants apart and then bring them together again in the cooler, more circumspect atmosphere of a courtroom.

As suggested, the expanded role of our federal judicial branch has been more than matched by fundamental changes in the role of the administrative branch, and especially of its head — the President of the United States. Before discussing the presidency, however, let us review the foregoing by way of an extended example of federalism and separation of powers.

Vertical and Horizontal Interdependence: An Example

Our vertical and horizontal division and integration of governmental functions permits each organ or political subdivision to enhance or frustrate the exercise of power — whether good or bad — of any other. For example, a state’s criminal statutes, enacted by the state’s elected legislature (the legislative branch) and signed into law by the state’s elected governor (the administrative branch), are enforced by a prosecutor bringing suit (an administrative function) before a state court and jury (the judicial branch).

If the accused is found guilty, the state’s judicial branch will impose a sentence but the administrative branch will carry it out — in a prison that is funded, and therefore indirectly controlled, by the state legislature. These are all examples of horizontal separation and interdependence of powers. In general, the legislative branch has the power of the purse, the administrative branch has the power of the sword, and the judicial branch has the power to order them not to use those powers unlawfully, arbitrarily, capriciously.

To complete the above example, if the accused is convicted, and asserts deprivation of a federal constitutional right (perhaps the right to effective legal counsel, or the right to an impartial jury), then a review of the conviction will be available in federal court — an instance of vertical division and integration, or federalism. Now, assume that our Congress has passed a federal statutory prohibition against racial, religious, or gender discrimination in federal or state institutions, including prisons; as it happens, we have such a law; and assume that a state prisoner, a Muslim woman of African descent, alleges discrimination based on the fact that she is prohibited from wearing a particular head covering; under our federal system, she may sue the state government in a federal court to enforce her federal statutory (and/or constitutional) rights.

In this federal suit, the judge will hear evidence and decide the case on the basis of relevant statutory and constitutional interpretations of the U.S. Supreme Court. As it happens, the lower court’s decision will depend on whether the prison can prove that this particular clothing regulation is necessary in order to maintain prison security and discipline. The decision will turn on precisely how convincing this proof has to be in order for the state to prevail. In the case of a prisoner’s clothing, the standard of proof will be less rigorous than in the case of a school child’s clothing, and even less rigorous than in the case of a state park employee’s clothing. These distinctions do not appear in statutes, but in prior precedents of the Supreme Court, which recognizes that prisoners give up many rights — but not all — when convicted.

In any event, if the federal judge finds the clothing regulation unlawful, then the judge is empowered to order the state governor, or any state administrative officer, to act according to the Supreme Court’s interpretation of this statute (or what the federal judge believes, based on prior precedents, that interpretation would be if the case were appealed to the Supreme Court). Once the legal point has been decided, especially if it is subsequently upheld in an appeal to the Supreme Court, then state and local officials in other states — including state judges — will also be bound by it.

This extended example of horizontal and vertical division and integration of power is intended to show the scope of the subject. Every legal and administrative issue involves and affects government officers of all three branches, often at the federal, state, and local levels. Many thousands of cases have contributed to crafting the complex and nuanced relationships here suggested, and this example necessary oversimplifies. Its purpose is not to supply answers so much as to suggest the range of questions implicated in our system of federalism and separation of powers.

History as Definition: The Presidency

The architecture of a “pravovoye gosudarstvo” — a government under law — as well as the ideals shaping it, presuppose an inherent conflict, and hence a necessary cooperation, among all elements of governance. This dynamism of conflict and cooperation is analogous to that of the wood and string of a bow. The bow is defined in terms of the proper juxtaposition of string and wood. The tension and pressure members of a geodesic dome provide a more complex example. But these are mechanical examples, and a healthy society is obviously more organic than mechanical. In fact, it is super-organic, made of mind-stuff, human invention, the vast panoply of what we call culture and civilization.

In U.S. constitutional theory and experience, the twin ideals of freedom and equality, like the binary goals of majority rule and individual rights, exemplify the conflict and cooperation of precious values that hold our 250 million people together — yet also keep them in constant conflict. Maximizing individual freedom can lead to vast inequalities of power and opportunity; maximizing majority rule can result in tyranny and exploitation of individuals and minorities. Finding the proper balance by deciding concrete cases is not a logical but an existential conundrum — one uniquely reposed in our judicial branch.

There is another dimension in which this balance must be found — not “case by judicial case” so much as speech by political speech. We have already discussed the expanded role of the judicial branch generally, and of the federal judiciary specifically, in daily forging anew the constitutional compact among our people and governmental organs. We will now end this discussion of federalism and separation of powers with a discussion of the powers of the presidency, the “bully pulpit” as President Theodore Roosevelt called it — which daily forges a different dimension of the constitutional compact, a dimension that is quintessentially political, based on persuasion, compromise, coalition building, and command of a vast military, diplomatic, and administrative infrastructure.

The office of President of the United States has undergone the most profound change of all during the past 200 years. As suggested, this is largely because the president is elected by all the people and can therefore claim, unlike any other elected official, to represent the popular will. It is also partly due to the president’s special role as Commander in Chief of the armed forces of the United States … and, indeed, of the free world. In fact, during the past half century the president has often served as a spokesman for freedom incarnate. This perhaps assumes a larger-than-life aura that needs tempering by the other two branches.

The powers of our federal government, according to the clear intent of the founders, were limited to those specifically delegated — “enumerated” — in the Constitution, plus a penumbra of “necessary and proper” powers to carry out those enumerated powers. These enumerated powers include: making war and maintaining national security; conducting foreign affairs; regulating foreign and interstate commerce (economic relations); and establishing a common currency, a nationwide postal system, and uniform laws on patents, copyrights, citizenship, and bankruptcies. Most of these enumerated powers are fairly narrow, although regulating interstate “commerce” has evolved into a wide avenue for federal legislation while the definition of “national security” has broadened greatly as the world has shrunk.

With the foregoing in mind, consider the last sentence of the Bill of Rights: “The powers not delegated to the united States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This “or to the people” leaves open the door for the people to grant to their popularly-elected President directly, or to their federal government generally, such powers as they have retained under the Constitution and now seek to “wield” through a president and federal government that will do their bidding irrespective of other constitutional restraints.

This is potentially a very wide door indeed, yet it has generally been used to expand federal power only to the extent necessary to provide a rationale for doing what almost everyone seems to agree must be done. “Almost everyone” is not everyone, and minority and individual rights must not be trampled on — again, the special province of judicial power.

The federal power, and governmental power generally, are bound to grow in our age of global interdependence, if only to check and balance the great and growing power of international corporations, regional political associations, transnational ideologies and professions, and the complexities of modern science and technology. The powers of the presidency have grown enormously, and in many ways now utterly eclipse those of the king whom the colonists rebelled against. What, then, of the colonists’ ideal of limited government?

Conclusion: Towards More Non-governmental Governance

The challenge, above all, is to maintain the integrity of the basic theory of limited government. As suggested at the outset, this theory holds that a distinction must be drawn between “government” and “governance” — thereby providing a foundation for the following formulation: That government governs best which governs least by fostering non-governmental governance, and responsible self-governance, wherever possible. An obvious example of such nongovernmental governance is the free press — what we call the “Fourth Branch” — without which the legislative, administrative, and judicial branches would become bloated, tyrannical, inefficient, corrupt and, following an inevitable revolution, dead.

Now, the Fourth Branch, and all that it implies in terms of free inquiry and expression, is not in fact a branch of the government at all. That is the point: a good government will ensure the survival of a free press in order to stay good — to stay within limited bounds. A more complex example of non-governmental governance is the free market. A good government must keep it free, enhancing the free flow of vital information necessary for its proper operation, so that the market may “govern” demand, supply, quality, price, workforce allocations, resource allocations, and all the vastly complex decisions and feedback loops of a healthy economy. Government cannot micromanage these economic forces as such — as has been shown time and again — but government both can and should foster the processes of governance and self-governance which Adam Smith called the “invisible hand” of the marketplace.

In an important sense, the judicial branch is also an organ of non-governmental governance. That is, a government under law is governed by legal norms and traditions of lawfulness that stand in dialectical relationship to “the government” — commenting, cajoling, even enjoining, but always in some profound sense standing apart. An independent judiciary, based on an autonomous legal profession, could be said to be “in” the government but not “of” the government, to borrow an ancient mystical notion. In this sense, the concept of a “pravovoye gosudarstvo” is very deep indeed. An independent judiciary must be based on an independent legal profession that understands these deep roots of the Western legal tradition — understands them, maintains their integrity and vitality, and thereby serves processes of governance that transcend any particular government, even the very best.

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Endnote

Lowry Wyman, J.D., University of Pennsylvania. The author was (at the time of this writing) a Fellow of the Russian Research Center, Harvard University. Link to CV. The author gratefully acknowledges the invaluable assistance of her husband, Barnabas D. Johnson, J.D., Harvard University. Go back.